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Recent Changes to UK Rules on Advertising to Children

2017 is shaping up to be the year that the UK's Committee of Advertising Practice ("CAP") puts its foot down on how companies can advertise to children online. In recent months, CAP has published a multitude of guidance to ensure that marketers know exactly how they can and cannot direct marketing communications at under-16s and under-18s.

On 13 April 2017, CAP published new guidance directed at marketers of age-sensitive products. The CAP Code1 already includes media placement restrictions protecting (i) children (under-16s) from being targeted with marketing for products such as lotteries and food or soft drinks high in fat, salt or sugar; and (ii) children and young people (under-18s) from being targeted with marketing for products such as alcohol, gambling and electronic-cigarettes. The new guidance assists by clarifying that age-restricted marketing communications must not be placed in or around media that is obviously directed at the relevant protected age category (for example on games websites for young children or in teen magazines), or in other media where the protected age category makes up more than 25% of the audience. Marketers must be able to show that prior to placement they have taken reasonable steps to understand the likely composition of their audience and to reduce the likelihood of those in a protected age category being exposed to age-restricted marketing communications.

On 28 April 2017, CAP published new guidance directed at all marketers who make, or run the risk of making, online marketing communications to under-12s. The CAP Code already requires that marketing communications be obviously identifiable as such. The new guidance clarifies that in order to ensure that under-12s recognise when they are being marketed to, marketers must provide a level of "enhanced disclosure" so that the message is communicated in a "prominent" and "interruptive" manner. Advertisements which are subject to this enhanced disclosure requirement should state up-front the marketer's identity and the commercial intent of the advertisement in a way which can be easily understood by a child under the age of 12.

On 6 June 2017, CAP published new guidance directed at all marketers. It reconfirms that marketers are required to demonstrate that they have taken reasonable steps to target age-restricted advertisements responsibly so as to minimise children's online exposure to them. The key takeaway from the guidance is that the steps taken to exclude the relevant audience (e.g. under-16s or under-18s) need only be "reasonable", but they must be real. Where available to them, marketers should use sophisticated targeting tools provided by digital media companies to collect data from the audience and use it to exclude certain groups. By collecting age data, a marketer is able to take steps to exclude all under-16s or under-18s from its target audience. By additionally collecting behavioural data, for example data on what users are interested in, a marketer could exclude from its audience all persons interested in behaviours common amongst under-16s or under-18s (for example teen pop concerts or children's cartoons).

The UK's Advertising Standards Authority will assess marketing communications on a case-by-case basis when deciding whether or not they are compliant with the CAP Code and all relevant guidance. With that in mind, and in light of the new guidance, marketers should now be taking steps to review existing and proposed campaigns in order to assess their level of compliance, and making any necessary changes to avoid exposure.

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